PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
HORACE MANN INSURANCE COMPANY,
Plaintiff-Appellee,
v.
GENERAL STAR NATIONAL INSURANCE
COMPANY,
Defendant-Appellant.

No. 06-2156

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(1:04-cv-00163-IMK)
Argued: September 26, 2007
Decided: January 23, 2008
Before NIEMEYER and TRAXLER, Circuit Judges,
and Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge Traxler wrote

the majority opinion, in which Judge Wilson joined. Judge Niemeyer
wrote a dissenting opinion.

COUNSEL
ARGUED: Jeffrey Alan Holmstrand, MCDERMOTT & BONENBERGER, P.L.L.C., Wheeling, West Virginia, for Appellant. Daniel
C. Cooper, Bridgeport, West Virginia, for Appellee. ON BRIEF:

MANN INSURANCE v. GENERAL STAR NATIONAL

Jamison H. Cropp, STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellee.

OPINION
TRAXLER, Circuit Judge:
This appeal involves a dispute between two insurance companies,
with each company claiming that the insurance provided by its policy
was "excess" to the other insurance and that its coverage therefore
was not triggered until the limits of the other companys policy were
exhausted. The district court granted summary judgment in favor of
Horace Mann Insurance Company, concluding that its policy was
excess to the policy issued by General Star National Insurance Company. General Star appeals. We reverse the decision of the district
court and remand for entry of judgment declaring the General Star
policy excess to the Horace Mann policy.
I.
A West Virginia high school student was sexually abused by a
teacher, and the student filed suit against numerous defendants,
including the school board and the school principal. The parties settled the claims for an amount in excess of $1,000,000.
West Virginia law requires the State Board of Risk and Insurance
Management to provide a minimum of $1,000,000 of liability insurance coverage for all county school boards and their employees. See
W. Va. Code 29-12-5a. The board must also provide a minimum of
$5,000,000 in excess liability insurance coverage. See id.
In this case, the statutorily required first layer of liability insurance
was provided by National Union Fire Insurance Company, and the
$5,000,000 in excess liability coverage was provided by General Star.
National Union contributed its policy limits to the settlement of the
students claims, and General Star, as excess insurer, contributed the
balance of the settlement amount.

MANN INSURANCE v. GENERAL STAR NATIONAL

General Star thereafter sought reimbursement from Horace Mann

Insurance Company, which had issued to the school principal a policy
providing some coverage for the students claim. Believing that its
policy provided no coverage until the limits of the General Star policy
were exhausted, Horace Mann commenced this declaratory judgment
action seeking a declaration of the parties obligations with regard to
the settlement.
The district court granted summary judgment in favor of Horace
Mann. The district court compared the language of the "other insurance" clauses contained in the General Star and Horace Mann policies
and concluded that the Horace Mann policy was excess to all other
insurance policies, while the General Star policy contemplated situations where other policies would be excess to its coverage. The district court therefore concluded that the language of the policies
required the limits of the General Star policy to be exhausted before
any contribution was required under the Horace Mann policy
II.
On appeal, General Star argues that its policy is a true excess policy, unlike the Horace Mann policy, which provides primary coverage
that sometimes becomes excess by virtue of an "other insurance"
clause. General Star argues that it is a well-established principle of
insurance law that true excess policies are always excess to policies
that provide primary coverage, and that the district court therefore
erred by granting summary judgment in favor of Horace Mann.
As we will explain, we agree with General Star that its status as a
true excess insurer requires us to reverse the decision of the district
court. Before delving into the details of General Stars argument,
however, we believe it will be helpful to first discuss the nature and
operation of primary and excess liability insurance policies. Because
we are sitting in diversity, our role is to apply the governing state law,
or, if necessary, predict how the states highest court would rule on
an unsettled issue. See Private Mortgage Inv. Servs., Inc. v. Hotel &
Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002). Accordingly,
where there is West Virginia law addressing a particular question, we
will follow it. But if the West Virginia courts have not addressed an
issue, we will look to generally accepted principles of insurance law,

MANN INSURANCE v. GENERAL STAR NATIONAL

because we believe that West Virginias Supreme Court of Appeals

would adopt those principles as its own.
A.
Primary liability insurance "provides the first layer of insurance
coverage. Primary coverage attaches immediately upon the happening
of an occurrence, or as soon as a claim is made. The primary insurer
is first responsible for defending and indemnifying the insured in the
event of a covered or potentially covered occurrence or claim." Gauze
v. Reed, 633 S.E.2d 326, 332 (W. Va. 2006) (internal quotation marks
omitted). "Because most losses are within primary policy limits and
therefore create greater exposure for primary insurers, and because
primary insurers are generally obligated to defend their insureds, primary insurers charge larger premiums for coverage than do excess
and umbrella carriers." Id. (internal quotation marks omitted)
Excess liability policies, by contrast, do not provide first-dollar
coverage for insured losses, but instead provide an additional layer of
coverage for losses that exceed the limits of a primary liability policy.
Coverage under an excess policy thus is triggered when the liability
limits of the underlying primary insurance policy have been
exhausted. See id. ("In keeping with the reasonable expectations of
the parties, including the insured, which paid separate premiums for
its primary and excess policies, excess coverage generally is not triggered until the underlying primary limits are exhausted by way of
judgments or settlements." (internal quotation marks and citation
omitted)); 15 Lee R. Russ & Thomas F. Segalla, Couch on Insurance
220:32 (3d ed. 2005) ("The purpose of . . . excess . . . coverage is
to protect the insured in the event of a catastrophic loss in which liability exceeds the available primary coverage. Accordingly, it is only
after the underlying primary policy has been exhausted does the
excess . . . coverage kick in." (footnote omitted)). "Excess insurance
is priced on the assumption that primary coverage exists: indeed, an
excess policy usually requires by its terms that the insured maintain
in force scheduled limits of primary insurance."1 Gauze, 633 S.E.2d
at 332 (internal quotation marks omitted).
1

Excess insurance may also be designed to operate above another

excess policy. In such a case, coverage under a second- layer excess policy would be triggered only after the limits of the first-layer excess policy have been exhausted.

MANN INSURANCE v. GENERAL STAR NATIONAL

The General Star policy at issue in this case is a typical excess policy. The policy describes itself an excess liability policy, see J.A. 25
("Certificate of Excess Insurance"), and the declarations on the first
page of the policy include a listing of the required underlying insurance and define the coverage as limited to occurrences where liability
is "in excess of the limits" of the underlying insurance, J.A. 25. The
policys insuring agreement likewise clearly defines the coverage as
excess in nature. See J.A. 31 ("The Company shall indemnify the
insured for ultimate net loss in excess of the underlying insurance
stated in Item 2 of the Declarations, but not in excess of the Companys limits of liability stated in Item 3 of the Declarations.").
The Horace Mann policy is an "educators employment liability"
policy issued to the school principal by virtue of his membership in
the National Education Association. J.A. 16. It provides for
$1,000,000 of coverage per member per occurrence for claims other
than civil rights claims; $300,000 of coverage for civil rights claims;
reimbursement of up to $35,000 for attorneys fees incurred in successfully defending a criminal action; and $1,000 bail bond premium
reimbursement. Whether the policy is a primary or excess policy is
a matter of some dispute that we will address in detail later in the
opinion. For the moment it suffices to say that the policy appears to
provide first-dollar, primary liability insurance coverage for the specified risks.
B.
Under certain circumstances, a primary liability insurance policy
may in fact provide only excess liability coverage. Because multiple
insurance policies may cover a given loss, liability insurance policies
generally contain "other insurance" clauses that attempt to define the
insurers responsibility for payment when other insurance coverage is
available. These clauses typically take the form of a pro-rata clause,
an escape clause, or an excess clause. A pro-rata clause "limit[s] the
insurers liability to its pro rata share of the loss in the proportion that
its policy limits bear[ ] to the aggregate of available liability coverage." State Farm Mut. Auto. Ins. Co. v. U.S. Fidelity & Guar. Co, 490
F.2d 407, 410 (4th Cir. 1974). An escape clause provides that the
insurer will have no liability to the insured when other insurance coverage is available, while an excess clause provides that the insurer

MANN INSURANCE v. GENERAL STAR NATIONAL

will be liable only after the exhaustion of the limits of any other applicable insurance. See id.; see also 15 Russ & Segalla, Couch on Insurance 219:5.
A primary liability insurance policy that contains an excess otherinsurance clause thus effectively operates as an excess policy if other
insurance is available. That is, even though the policy would provide
primary, first-dollar coverage for an insured loss if no other insurance
policy covered the loss, it will provide excess coverage when other
insurance is available. Primary liability policies with excess otherinsurance clauses are sometimes referred to as "coincidental excess"
policies. See Firemans Fund Ins. Co. v. CNA Ins. Co., 862 A.2d 251,
266 (Vt. 2004) ("[C]oincidental excess insurance is primary insurance that is rendered excess by operation of a policy provision, like
an other insurance clause, in a specific set of circumstances.").
Other-insurance clauses are generally valid and enforceable, see 15
Russ & Segalla, Couch on Insurance 219:3, and the clauses are easy
enough to interpret and apply when only one policy with an otherinsurance clause is involved. Interpretation and application of the
clauses, however, may be quite difficult in cases where multiple liability policies potentially provide coverage for a given loss and each
of the policies contains an other-insurance clause. For example, if two
potentially applicable policies both contain an escape clause, application of the clauses as written could leave the insured without any liability coverageeach insurer could point to the existence of the other
policy and claim that its escape clause relieved it of any obligation
under the policy. And in cases where both policies contain excess
other-insurance clauses, each insurer will contend that its otherinsurance clause makes it excess to the other and that the other policy
must therefore provide primary coverage. In such cases there typically
is no language in either policy that gives a court a contractually-based
way to decide which policy should be excess to the other. Cf. Employers Reinsurance Corp. v. Phoenix Ins. Co., 230 Cal. Rptr. 792, 798
(Cal. Ct. App. 1986) ("If we were to give effect to all three excess
clauses in this instance, they would cancel each other out and afford
the insured no coverage whatsoever. We would travel full circle with
no place to say the buck stops here."). Given the prevalence of
other-insurance clauses, it is not surprising that "the books are replete

MANN INSURANCE v. GENERAL STAR NATIONAL

with cases involving conflicts between various combinations of such

clauses." State Farm, 490 F.2d at 410.
Generally speaking, in cases where the other-insurance clauses can
be reconciled, the clauses will be enforced in accordance with their
terms. See, e.g., Citgo Petroleum Corp. v. Yeargin, Inc., 690 So. 2d
154, 167 (La. Ct. App. 1997); Northland Ins. Co. v. Continental Western Ins. Co., 550 N.W.2d 298, 303 (Minn. Ct. App. 1996). In cases
where there are actual conflicts in the language of the clauses, or
where a literal application of the clauses could leave the insured without coverage, various methods for resolving the issue have gained
acceptance. Some courts find conflicting other-insurance clauses to be
"mutually repugnant" and thus unenforceable and require the insurers
to bear pro-rata shares of the total liability. See, e.g., State Farm, 490
F.2d at 410; Hoffmaster v. Harleysville Ins. Co., 657 A.2d 1274, 1277
(Pa. Super. Ct. 1995). Other courts, however, resolve the conflicts by
considering the "total policy insuring intent." Under this approach,
where conflicting other-insurance clauses "cannot be resolved by the
logic of their terms, the insurer whose coverage was effected for the
primary purpose of insuring the particular risk should be primarily liable for payment, with the insurer whose coverage was most incidental
to risk being liable last." 15 Russ & Segalla, Couch on Insurance
219:49; see, e.g., Integrity Mut. Ins. Co. v. State Auto. & Cas.
Underwriters Ins. Co., 239 N.W.2d 445, 446-47 (Minn. 1976).
The Horace Mann and the General Star policies both include otherinsurance clauses. The General Star clause states that
[i]f other valid and collectible insurance with any other
insurer is available to the insured covering a loss also covered by this Policy, other than insurance that is in excess of
the insurance afforded by this Policy, the insurance afforded
by this Policy shall be in excess of and shall not contribute
with such other insurance. Nothing herein shall be construed
to make this Policy subject to the terms, conditions, and limitations of other insurance, reinsurance or indemnity.
J.A. 35.
The relevant portions of the Horace Mann clause state that:

MANN INSURANCE v. GENERAL STAR NATIONAL

[The policy] was written and priced to reflect the intent of

all parties that this policy is in excess of any and all other
insurance policies, . . . whether primary, excess, umbrella,
or contingent . . . . [I]t is the intent of the parties that the
coverage afforded in this policy does not apply if the insured
has other valid and collectible insurance of any kind whatsoever whether primary or excess, . . . except any excess
beyond the amount which would have been payable under
such other policy or policies . . . had this policy not been in
effect. Other valid and collectible includes, but is not limited
to, policies . . . purchased by . . . an educational unit to
insure against liability arising from activities of the educational unit or its employees, regardless of whether or not the
policy . . . provides primary, excess, umbrella, or contingent
coverage. . . .
This policy is specifically excess over coverage provided by
school district or school board errors and omissions or general liability policies purchased by the Insureds employer
. . . and it is specifically excess over coverage provided by
any policy of insurance which purports to be excess to or
recites that it is excess to a policy issued to the Insured for
the benefit of members of the National Education Association.
J.A. 22-23 (emphasis added).2
The district court viewed this case as a straightforward otherinsurance-clause case and concluded that the clauses could be reconciled. The Horace Mann policy clearly indicates that it is to be excess
to all other applicable insurance policies, including excess policies.
The General Star policy, by contrast, states that it will be excess to
all other insurance "other than insurance that is in excess of the insurance afforded by this Policy." J.A. 35 (emphasis added). The district
court concluded that because the General Star policy contemplated
that it might not always be excess and the Horace Mann policy made
2

Horace Manns other-insurance clause also provides for pro-rata contribution in the event there is some other excess policy to which the Horace Mann policy would not be considered excess.

MANN INSURANCE v. GENERAL STAR NATIONAL

clear its intention to always be excess when other insurance is available, the Horace Mann policy was not required to contribute to the
settlement of the underlying tort claims until the limits of the General
Star policy were exhausted. And because payment of the underlying
settlement did not exhaust General Stars policy limits, the district
court granted summary judgment in favor of Horace Mann.
C.
We turn now to General Stars challenge to the district courts
decision. General Star argues that its policy is a true (or pure) excess
policy that only provides excess coverage and never provides primary
coverage. Horace Manns policy, by contrast, provides primary liability coverage that in some cases will convert to excess coverage by virtue of the other-insurance clause. General Star contends that the rules
generally governing conflicts between other-insurance clauses do not
apply when one of the policies at issue is a true excess policy and the
other policy is a primary liability policy. Instead, General Star contends that priority disputes between a true excess policy and a primary
policy with an excess other-insurance clause are always resolved in
favor of the true excess policy.
(1)
"True excess" or "pure excess" is a description used to distinguish
typical excess liability policies from coincidental excess policies
policies that provide primary liability coverage but operate as excess
in a given case because of an other-insurance clause. See Gauze, 633
S.E.2d at 333 (concluding that policy was not a "pure excess" policy
because it "provide[d] the first layer of insurance coverage, unless
there was some other coverage"); see also Sherlock v. Ocean Salvage Corp., 785 So. 2d 932, 937 (La. App. 2001) ("In resolving conflicting other insurance clauses it is important to distinguish
between policies that are true excess policies and those that are actually primary policies with excess other insurance clauses." (internal
quotation marks omitted)).
There is no question that General Stars policy is a true excess policy. As the terms of its insuring agreement make clear, coverage
under the General Star policy is dependent upon the exhaustion of the

10

MANN INSURANCE v. GENERAL STAR NATIONAL

limits of underlying primary liability insurance, and this kind of

dependence on an underlying liability policy is the hallmark of a true
excess policy.
It is just as clear to us that the Horace Mann policy is a primary
liability policy. The policy provides that it will pay "on behalf of the
insured any and all [covered losses] subject to the limit of liability."
J.A. 18. The policy does not require that the insured maintain other
insurance, and neither the declarations nor the insuring agreements
limit coverage to losses in excess of the limits of an underlying insurance policy. See Gauze, 633 S.E.2d at 333 (concluding that insurance
policy was not a pure excess policy because the policy "did not provide specific coverage above a defined underlying limit of primary
insurance," did not require the insured "to maintain in force certain
scheduled limits of primary insurance," and there was no indication
the "premiums were priced on the assumption that primary coverage
existed"); Commerce & Industry Ins. Co. v. Chubb Custom Ins. Co.,
89 Cal. Rptr. 2d 415, 419-20 (Cal. Ct. App. 1999) (rejecting insurers
claim that policy was always intended to provide contingent or excess
coverage, noting that the policy "meets the definition of primary
coveragethe insurers liability arises immediately upon occurrence
of a covered lossand fails to display the indicia of a true excess or
umbrella policy, such as . . . specific identification of the primary coverage policy or other policy language" (citations omitted)). The policy
as written thus provides primary, first-dollar liability insurance.
Although the policy is written to provide primary liability coverage, Horace Mann, pointing to the language in its other-insurance
clause, insists that the policy was always intended to be an excess policy. The language in the other-insurance clause, however, states only
that the policy was intended to be excess to any other policy that may
exist; if there is no other insurance, the primary coverage offered by
the policy would be triggered. While this makes the policy a coincidental excess policy, the question is whether the policy qualifies as
a true excess policy. Because the other-insurance clause does not
make coverage in all cases dependent on the exhaustion of the limits
of an underlying insurance policy, the other-insurance clause does not
transform the policy into a true excess policy. See, e.g., Firemens
Fund Ins. Co., 862 A.2d at 266 ("The fact that Firemans policy is
excess under a certain set of circumstances does not transform it from

MANN INSURANCE v. GENERAL STAR NATIONAL

11

a primary policy with an other insurance clause into a true excess

policy."); CNA Ins. Co. v. Selective Ins. Co., 807 A.2d 247, 254 (N.J.
Supr. App. 2002) (explaining that an excess other-insurance clause
contained in a primary insurance policy "does not transform that primary policy into an excess policy" (internal quotation marks omitted)); Bosco v. Bauermeister, 571 N.W.2d 509, 514 (Mich. 1997)
("Plaintiff misunderstands the basic nature of the Frankenmuth policy.
It is a primary policy and has an excess clause that becomes operative
in certain limited circumstances. This clause does not change the
nature and function of the policy."); North River Ins. Co. v. American
Home Assur., 257 Cal. Rptr. 129, 131 (Cal. App. 1989) ("The presence of an other insurance provision in a primary policy does not
transform that primary policy into an excess policy vis a vis a secondary carrier with excess coverage.").
We recognize that in most cases where there is coverage under the
Horace Mann policy, the policy will in fact operate as excess coverage. The Horace Mann policy apparently was developed specifically
for West Virginia NEA members, all of whom should be covered by
the statutorily mandated insurance coverage for county school board
employees. The policys other-insurance clause thus means that the
policy generally will provide only excess coverage to a West Virginia
teacher.3 That the policy will typically operate as an excess policy,
however, simply cannot change the fact that the policy is written to
3

As mentioned above, the Horace Mann policy provides for reimbursement for a bail bond premium and reimbursement for attorneys fees
incurred in a successful defense against criminal charges. It seems
unlikely that such coverage would be provided by the other insurance
that might be available to Horace Mann policy holders, such as the statutorily mandated insurance for school boards, or homeowners insurance.
Thus, it may well be that the Horace Mann policy would provide primary
coverage in these areas even when other insurance exists. See 15 Lee R.
Russ & Thomas F. Segalla, Couch on Insurance 219:14 (3d ed. 2005)
("It is generally held that in order for an other insurance clause to operate
in the insurers favor, there must be both an identity of the insured interest and an identity of risk. . . . The rule that the risks be identical in order
for an other insurance clause to apply does not mean that the total possible coverage under each policy be the same, but merely that with
respect to the harm which has been sustained there be coverage under
both policies." (footnotes omitted)).

12

MANN INSURANCE v. GENERAL STAR NATIONAL

provide primary liability insurance. Horace Mann could have offered

NEA members a true excess policy that provided coverage after
exhaustion of the limits of West Virginias statutorily mandated insurance. It instead chose to offer a policy that provides some amount of
primary liability coverage but converts to excess coverage when other
insurance exists. The excess other-insurance clause works to reduce
Horace Manns exposure in most cases, but it does not transform the
policy into a true excess policy. See Gauze, 633 S.E.2d at 333; CNA
Ins. Co., 807 A.2d at 254; Bosco, 571 N.W.2d at 514.
(2)
The identification of the General Star policy as a true excess policy
and the Horace Mann policy as a primary policy that becomes excess
by operation of its other-insurance clause is effectively dispositive of
the priority issue presented in this appeal. Although the West Virginia
Supreme Court has not spoken on this precise question, the general
rule is that as between a true excess policy and a primary liability policy with an other-insurance clause, the limits of the policy that provides primary insurance must always be exhausted before coverage
under the excess policy is triggered:
[N]umerous courts in other jurisdictions have addressed the
question and have aligned themselves with the position [the
excess insurer] takes: a true excess insurance policy is secondary in priority to a primary insurance policy, even with
respect to an incident for which the primary policy purports
to make itself excess to any other available insurance. . . .
Indeed, it appears that not only is this the majority rule, but
the practically universal rule in jurisdictions that have
addressed the issue. Otherwise stated, the prevailing rule is
that umbrella insurance coverage is "true excess over and
above any type of primary coverage, excess provisions arising in regular policies in any manner, or escape clauses."
Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 492-93 (Ind.
App. 2004) (emphasis added); accord National Surety Corp. v.
Ranger Ins. Co., 260 F.3d 881, 884 (8th Cir. 2001) (applying Iowa
law); Institute for Shipboard Educ. v. Cigna Worldwide Ins. Co., 22
F.3d 414, 425-26 (2d Cir. 1994) (applying Pennsylvania law);

MANN INSURANCE v. GENERAL STAR NATIONAL

13

National Farmers Union Prop. & Cas. Co. v. Farm & City Ins. Co.,
689 N.W.2d 619, 624 (S.D. 2004); LeMars Mut. Ins. Co. v. Farm &
City Ins. Co., 494 N.W.2d 216, 218-19 (Iowa 1992); Atkinson v.
Atkinson, 326 S.E.2d 206, 214 (Ga. 1985).
This rule applies without regard to the terms of the policies otherinsurance clauses, because other-insurance clauses are an issue only
"when two or more policies apply at the same level of coverage. An
other insurance dispute can only arise between carriers on the same
level[;] it cannot arise between excess and primary insurers." North
River Ins. Co., 257 Cal. Rptr. at 132 (citations and internal quotation
marks omitted); see Allstate Ins. Co. v. Frank B. Hall & Co. of Ca.,
770 P.2d 1342, 1347 (Co. Ct. App. 1989) (declining to require prorata contribution where other-insurance clauses were mutually repugnant, because that "rule has generally not been applied when one of
the clauses is contained within what would otherwise be a primary
policy . . . and the other is contained within a policy that is designed
to be an excess or umbrella policy"); 15 Russ & Segalla, Couch on
Insurance 218:5 ("An other insurance dispute cannot arise
between primary insurers and true excess insurers."). Accordingly, in
a priority dispute between a true excess insurer and a primary or coincidental excess insurer, the policies other-insurance clauses simply
are not relevant, and there is no reason to consider whether the otherinsurance clauses may be reconciled or must be set aside as mutually
repugnant. See General Star Natl Ins. Co. v. World Oil Co., 973 F.
Supp. 943, 949 (C.D. Cal. 1997) ("When a policy is excess to another
policy, there is no need to analyze the other insurance clauses in
either of the policies. Because an excess or secondary policy, by its
own terms, does not apply to cover a loss until the underlying primary
insurance has been exhausted, an examination of other insurance
clauses to determine the relative rights and responsibilities of the parties is unnecessary where the policies do not provide the same level
of protection." (citation and alteration omitted)); National Farmers
Union Prop. & Cas. Co., 689 N.W.2d at 624 (concluding that true
excess policy was last in priority of payment even though the primary
insurance policy had a broad other-insurance clause: "Competing
other insurance clauses . . ., which normally would invoke contract
construction rules, must yield to a finding of the insurance policies
main functions."); accord National Sur. Corp., 260 F.3d at 884;

14

MANN INSURANCE v. GENERAL STAR NATIONAL

Cigna Worldwide Ins. Co., 22 F.3d at 426; Langreck, 816 N.E.2d at

493.
If this general rulethat true excess insurance is always excess
over a policy providing primary coverageapplies in West Virginia,
then the district court erred by looking to the language of the policies
other-insurance clauses rather than to the nature of the insurance coverage provided by the policies. As noted above, West Virginia courts
have not yet addressed this issue. General Star, however, contends
that this court has already predicted that West Virginia would follow
the general rule that true excess coverage is always excess to coverage provided in a primary insurance policy. See Allstate Ins. Co. v.
American Hardware Mut. Ins. Co., 865 F.2d 592 (4th Cir. 1989).
In Allstate, a car owned by the Chrysler Corporation and leased to
a dealer was involved in an accident. Liability coverage for the car
was provided by policies issued by Continental Insurance and American Hardware Insurance. A true excess policy4 issued to Chrysler by
Allstate also provided coverage for the car. There was no dispute that
the Continental policy provided primary coverage that must be
exhausted before coverage from the other policies would become
applicable; the question was the order of priority between the Allstate
and American Hardware policies. The American Hardware policy
was a "garage operations" policy that provided primary liability insurance to the dealer for claims arising from its garage operations. The
policy, however, included a provision that made its coverage excess
for covered claims involving a car that was not owned by the dealer.
Because the Allstate policy also included an excess other-insurance
4

We referred to the excess policy as an "umbrella" policy, a term that

is often used to describe a pure excess policy. See Allstate Ins. Co. v.
American Hardware Mut. Ins. Co., 865 F.2d 592, 593 (4th Cir. 1989).
Umbrella policies, however, may provide coverage not available under
a typical pure excess policy. In addition to excess coverage for risks covered by an underlying insurance policy, some umbrella policies offer primary liability coverage for certain risks not covered by the underlying
policy. See, e.g., Coleman Co., Inc. v. California Union Ins. Co., 960
F.2d 1529, 1530 n.1 (10th Cir. 1992). The policy at issue in Allstate,
however, was a pure excess policy; it offered no primary coverage for
any risk. See Allstate, 865 F.2d at 593.

MANN INSURANCE v. GENERAL STAR NATIONAL

15

clause, the district court concluded that the excess other-insurance

clauses in the policies were mutually repugnant and that any loss
above the limits of the Continental policy should be pro-rated
between Allstate and American Hardware. See id. at 593.
On appeal, we noted that the overwhelming weight of authority
held that "primary policies with excess clauses must be exhausted
before the carrier of an umbrella policy will be required to pay." Id.
at 594. We concluded that West Virginia would follow the same rule,
and we therefore reversed the district courts ruling:
[T]he Allstate policy is purely excess in nature. It is a classic
umbrella policy and can therefore never provide primary
coverage. Rather, it encompasses all the potential liabilities
which Chrysler might incur and provides an additional
source of funds for liabilities in excess of the underlying
policies coverage. The issuance of the umbrella policy in
the present case was conditioned upon the existence of 13
different underlying policies protecting Chrysler from liability in almost any imaginable circumstance.
In contrast, the American Hardware policy is essentially
a policy of primary coverage. It is a "garage operations" policy and provides Greenbrier with primary coverage for all
liabilities arising from its operations. However, in the event
that liability should result from the use of a non-owned automobile, the American Hardware policy states that it will
provide only excess coverage. Consequently, in the instant
case American Hardware purports to be a secondary carrier
even though it has issued essentially a primary policy to
Greenbrier. . . . Since American Hardware is in most
instances a primary policy, its limits should be exhausted
before Allstate is required to contribute.
Id. at 594-95.
In our view, Allstate represents a straightforward application of the
true-excess-is-always-excess rule urged by General Star. The district
court in Allstate had approached the case by comparing the language
of the other-insurance clauses and determining that the clauses were

16

MANN INSURANCE v. GENERAL STAR NATIONAL

"mutually repugnant and must be disregarded." Id. at 593. We

reversed the district court not because we believed that the otherinsurance clauses in fact could be reconciled, but because we believed
that West Virginia would follow the majority rule that "purported
conflicts" between a true excess insurer and an insurer that provided
"essentially primary coverage" made excess by virtue of a contract
provision must be resolved in favor of the true excess insurer. Id. at
594. Our holding thus was premised on the nature of the policies at
issue, not on the language of the other-insurance clauses. See id. at
594-95. Because the West Virginia courts still have not directly
addressed this issue, we believe that Allstates prediction of West Virginia law must control the disposition of this appeal.5
Horace Mann, however, contends that Allstate is distinguishable
and does not control the resolution of this appeal. Horace Mann seems
to suggest that Allstate is inapplicable because it involved a primary
automobile liability policy that was rendered excess by virtue of a
non-owned vehicle clause. Allstate did involve automobile liability
insurance, as do many of the cases applying the general true-excessis-always-excess rule. The general rule, however, is not dependent on
5

Even without Allstate, we would predict that West Virginia would follow the true-excess-is-always-excess rule. Horace Mann does not dispute
the substance or wisdom of the general rule, but argues only that the rule
does not apply to this case. And while the rule is frequently described as
being the majority rule, Horace Mann does not point to any case where
a court has rejected the rule. Cf. Monroe Guar. Ins. Co. v. Langreck, 816
N.E.2d 485, 492-93 (Ind. App. 2004) (characterizing the true-excess-isalways-excess rule as a "practically universal rule in jurisdictions that
have addressed the issue"). Moreover, the rule is advocated by the
authors of the leading treatises on insurance law, see 15 Russ & Segalla,
Couch on Insurance 218:5 ("An other insurance dispute cannot arise
between primary insurers and true excess insurers."); 8A John A. Appleman & Jean Appleman, Insurance Law and Practice 4909.85 (1981)
("Umbrella coverages, almost without dispute, are regarded as true
excess over and above any type of primary coverage . . . ."), treatises to
which the West Virginia Supreme Court has looked for guidance when
resolving insurance issues, see, e.g., West Virginia Fire & Cas. Co. v.
Mathews, 543 S.E.2d 664, 670 (W. Va. 2000) (citing Couch); Erie Ins.
Prop. & Cas. Co. v. Stage Show Pizza, JTS, Inc., 553 S.E.2d 257, 262
(W. Va. 2001) (citing Appleman and Couch).

MANN INSURANCE v. GENERAL STAR NATIONAL

17

the wording of the non-owned vehicle clause or on any other contract

provision that is peculiar to automobile policies. The rule is based on
a consideration of the nature of primary and excess liability insurance
policies generally, regardless of whether the policies provide coverage for automobile liability or liability arising from a different source.
Horace Mann also finds it significant that the excess insurance policy in Allstate was voluntarily purchased, whereas the excess coverage provided by General Star was part of a package of insurance that
West Virginia county school boards are statutorily obligated to carry.
We fail to see how the outcome of this appeal is affected by the mandatory nature of the General Star insurance. The statute simply
requires that primary and excess liability insurance of specified
amounts must be carried; it does not speak to questions of priority
between concurrent policies. See W. Va. Code 29-12-5a(c). Accordingly, it is in no way inconsistent with West Virginias statutory
insurance scheme to require Horace Manns coverage limits to be
exhausted before General Stars coverage is triggered. If anything,
because the legislature is presumed to have knowledge of the common law relating to the subject matter of a statute, see State ex rel.
Fox v. Brewster, 84 S.E.2d 231, 244 (W. Va. 1954), the legislative
silence on the question of priority suggests approval of the general
rule that we apply in this case.
Horace Manns other efforts at distinguishing Allstate revolve
around the language and effect of its and General Stars otherinsurance clauses. Horace Mann first suggests that the other-insurance
clauses at issue in Allstate, when read together, indicated that the primary insurance should be exhausted first, while "the overall insuring
schemes of the policies at issue [in this case] demonstrate that the
Horace Mann policy is contractually excess to the General Star policy." Brief of Appellee at 17. As discussed above, however, the Allstate court applied the true-excess-is-always-excess rule, a rule that
applies without regard to language of the other-insurance clauses.
Horace Mann therefore cannot avoid Allstate by arguing that application of the other-insurance clauses in this case would yield a different
result.6
6

We note that Horace Mann misconstrues the scope of General Stars

other-insurance clause. In our view, the clause is properly understood as

18

MANN INSURANCE v. GENERAL STAR NATIONAL

Horace Mann also argues that the primary policy in Allstate was
always intended to provide primary coverage (except when a nonowned vehicle was involved), while its policy, as evidenced by the
language in its other-insurance policy, "can never be primary7 to any
other policy," Brief of Appellee at 17, and "was always intended to
provide excess coverage," id. at 22. Though couched in terms of distinguishing Allstate, Horace Manns argument is more of a challenge
to the characterization of its policy as a primary liability policy or a
coincidental excess policy. In any event, the argument is without
merit.
Horace Mann is probably correct that there is a factual difference
between its level of exposure and the level of exposure in Allstate of
the garage policy insurer, whose policy limits we concluded must be
exhausted before the true excess insurer could be required to contribute. That is, the issuer of the garage operations policy in Allstate
likely would have expected that most claims under the policy would
trigger its primary coverage obligations rather than the excess covera recognition that the insured might buy secondary excess insurance
insurance that operates as excess to General Stars excess policy. See
National Farmers Union, 689 N.W.2d at 623 (concluding that otherinsurance clause contained in true excess policy which stated that the
policy would not be excess to "insurance bought to apply in excess of the
retained limit of liability plus the limit of liability of this policy" referred
to a third layer of insurance coverage); Allstate Ins. Co. v. Frank B. Hall
& Co. of Ca., 770 P.2d 1342, 1347 (Colo. Ct. App. 1989) (concluding
that "the reference in the umbrella coverages excess clause to a policy
that is specifically stated to be in excess of that policy refers to a third
tier of insurance that treats the umbrella coverage as underlying insurance and specifically refers to that coverage. This proviso does not refer
to primary liability insurance that merely has a standard excess clause.").
That General Star contemplated the possibility of another true excess
policy being excess to its coverage does not mean that it contemplated
that a policy providing primary coverage would be excess to its policy.
7
We also note that in no event is Horace Mann providing primary liability coverage in this case; primary coverage was provided under the
National Union Fire Insurance Company policy. The question in this
appeal is whether Horace Mann or General Star must bear responsibility
for the amount of the settlement in excess of the limits of the primary
insurance.

MANN INSURANCE v. GENERAL STAR NATIONAL

19

age available when a non-owned vehicle was involved. As we have

previously discussed, it is likely that most of the claims asserted under
Horace Manns policy by West Virginia NEA members will require
Horace Mann to function only as an excess insurer. We simply cannot
conclude, however, that this factual distinction has any legal significance.
We have already set out the governing legal principles: Horace
Manns policy as written provides primary coverage and contains
none of the hallmarks of a true excess policy. While its otherinsurance clause makes the policy coverage excess if other insurance
also covers the loss, an excess other-insurance contained in a policy
that provides primary insurance does not transform that policy into a
true excess liability policy. And in a priority dispute between a true
excess insurer and a coincidental excess insurer, the true excess
insurer wins. The limits of the coincidental excess policy must be
exhausted before coverage is triggered under the true excess policy.
By arguing that it never expected to provide anything other than
excess coverage and that its expectation is relevant to the priority
issue we face, Horace Mann is effectively asking this court to carve
out an exception to these well-established principles. Horace Mann
would have this court conclude that there is another category of insurance (in addition to true excess insurance and coincidental excess
insurance), a category that should perhaps be referred to as justbarely-coincidental excess insurance, because there will hardly ever
be a situation where the insurance will operate as primary rather than
excess, and would have us treat this just-barely-coincidental excess
insurance as if it were true excess insurance. We decline this invitation.
Horace Mann cites nothing in support of its view of the relevancy
of the theoretical frequency that offered primary coverage will actually be triggered, and we have found no case that contemplates the
possibility that the general rules would not apply to a policy like Horace Manns. Horace Mann could have obtained the result it seeks by
writing a true excess policy for West Virginia NEA members, but it
chose instead to write a policy that by its plain terms offers primary
liability coverage. Because the Horace Mann policy offers primary
liability coverage, we see no reason to except it from the rule that the
limits of policies providing primary liability insurance must be

20

MANN INSURANCE v. GENERAL STAR NATIONAL

exhausted before the coverage of a true excess policy is triggered. We

have already predicted that the West Virginia Supreme Court will follow this nearly universally accepted rule. See Allstate, 865 F.2d at
595. But even if we were not bound by Allstates prediction of West
Virginia law, we do not believe that the West Virginia Supreme Court
would see fit to create a previously unknown exception to the general
rule in order to insulate Horace Mann from the effect of its decision
to write a primary liability insurance policy.
III.
To summarize, we conclude that the policy issued by General Star
is a pure excess policy, while the Horace Mann policy provides primary liability coverage that becomes excess coverage by virtue of its
other-insurance clause. Because the General Star policy is a pure
excess policy, we must follow the general rule (as applied in Allstate
Ins. Co. v. American Hardware Mut. Ins. Co., 865 F.2d 592 (4th Cir.
1989)) that the limits of a policy that provides primary insurance must
always be exhausted before coverage under the true excess policy is
triggered.8 Accordingly, we hereby reverse the order of the district
court and remand for entry of judgment declaring the General Star
policy excess to the Horace Mann policy.
REVERSED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
I
During the 2002-2003 school year, a high school teacher in West
Virginias Lincoln County School District sexually abused a student,
and the students parents sued the teacher, the school board, and several school system employees, including the schools principal.
National Union Fire Insurance Company ("National Union"), the
school boards primary insurance carrier, paid the limits of its $1 mil8

Our disposition of this issue makes it unnecessary to consider the

other issues raised by General Star.

MANN INSURANCE v. GENERAL STAR NATIONAL

21

lion policy to settle the parents claim, and General Star National
Insurance Company ("General Star"), the school boards excess carrier, contributed a portion of its $5 million excess coverage to the settlement. This action addresses whether General Star has a right to
obtain reimbursement from Horace Mann Insurance Company
("Horace Mann"), which had underwritten an insurance policy covering members of the West Virginia Education Association personally,
including the school principal in this case.
The district court, considering the language of both the General
Star policy and the Horace Mann policy, concluded that the "other
insurance" provisions of the two policies were reconcilable and
accordingly applied them so that the Horace Mann policy was excess
over the General Star policy. The court noted that the language of the
Horace Mann policy specifically defined its coverage to be excess
over the General Star policy and that the General Star policy explicitly accommodated this order of coverage, providing that it was not
an excess policy over another policy that provided it was an excess
policy over the General Star policy.
I agree with the district courts common sense reading of the plain
language of the two policies and its conclusions that they are not in
conflict. Therefore, I conclude that no extra-contractual insurance
principles developed to resolve conflicts among policies need to be
applied to determine the order of their coverage.
II
Rather than applying the language of the policies, the majority
attempts to assign the policies at issue to generalized classifications
and then to apply general rules of court-made law to resolve conflicts
among policy classifications. To this end, the majority devotes pages
to defining the classifications to which it might assign the policies and
how each classification might change with the inclusion of a different
type of "other-insurance" clause. The generalized classifications identified by the majority include: "a primary policy," "an excess policy,"
"policies with other insurance clauses taking the form of a pro-rata
clause, an escape clause, or an excess clause," "a primary liability
insurance policy that contains an excess other-insurance clause," "a
coincidental excess policy," "a true excess or pure excess policy," and

22

MANN INSURANCE v. GENERAL STAR NATIONAL

an "umbrella policy." And then, after spending pages defining these

general classifications, the majority attempts to fit the policies in this
case within one classification or another. It concludes that the Horace
Mann policy is a "coincidental excess policy" and that the General
Star policy is a "true excess policy." It then assumes that these classifications conflict and, without considering whether the policies do in
fact conflict, predicts that West Virginia would resolve the conflict in
favor of General Star, even as it acknowledges that no West Virginia
case has so held. As to whether it should consider the policy language, the majority states:
Accordingly, in a priority dispute between a true excess
insurer and a primary or coincidental excess insurer, the policies other-insurance clauses simply are not relevant, and
there is no reason to consider whether the other-insurance
clauses may be reconciled or must be set aside as mutually
repugnant.
(Emphasis added). To predict what West Virginia might do, the
majority relies on our holding in Allstate Insurance Co. v. American
Hardware Mutual Insurance Co., 865 F.2d 592 (4th. Cir. 1989),
which held that when two policies conflict, the true excess insurance
is always excess over a policy providing primary coverage, regardless
of the language of the policies.
The jurisprudence of the majoritys decisionmaking is a remarkable
creation for this case, especially in view of its acknowledgment, when
describing the generally applicable principles of law, that "where the
other-insurance clauses can be reconciled, the clauses will be
enforced in accordance with their terms." Rather than attempting to
apply this principle and reconcile the clauses, however, the majority
concludes from its classification system that the policies cannot be
reconciled. Accordingly, it applies the inappropriate proposition that
when in conflict, an excess policy is always secondary to a primary
policy. Using this methodology, it reaches the conclusion that General
Star wins and so reverses the district courts judgment.
Had the majority taken the relevant insurance policies as contracts
and applied them as written, it would undoubtedly have reached the
same conclusion that the district court reached.

MANN INSURANCE v. GENERAL STAR NATIONAL

23

III
The policies in this case were issued against the statutory backdrop
of the West Virginia Code, which requires specified insurance for
school systems and public school employees. In West Virginia, all
county boards of education are required by law to have at least $1
million of primary liability insurance coverage and $5 million of
excess coverage. See W. Va. Code 29-12-5a. In particular, the statute requires that the West Virginia Board of Risk and Insurance Management purchase such insurance on behalf of all boards of education
and their employees, and it requires that the county school boards pay
the premiums for the excess policy. Id. 29-12-5a(c). Moreover, each
insurance company providing insurance under this mandate must be
licensed to do business in West Virginia. Id. For the Lincoln County
Board of Educations 2002-2003 school year, the statutorily required
insurance package consisted of a primary policy issued by National
Union, covering losses up to $1 million, and an excess policy issued
by General Star, covering losses greater than $1 million, up to an
additional $5 million. For persons in the education and insurance
fields in West Virginia, these requirements were well known and well
understood.
Recognizing this system of mandated insurance, the West Virginia
Education Association obtained a supplemental policy from Horace
Mann, which provided personal coverage for the members of the
Association, including the school principal in this case. The Horace
Mann policy explicitly stated that it was a low-cost policy providing
personal protection to members over and above the state-mandated
insurance for public school employees.
In this case, after National Union paid its policy limits to settle
with the parents of the abused student and General Star paid the
remainder of the settlement amount, General Star sought to obtain
reimbursement for the amounts it paid from Horace Mann. Horace
Mann denied that it had a duty to reimburse General Star because its
policy was excess over General Stars policy, and it commenced this
action seeking a declaratory judgment that its coverage was excess
over General Stars policy and that General Stars policy limits had
to be exhausted before Horace Mann would become obligated to contribute any amount. In response, General Star counterclaimed for a

24

MANN INSURANCE v. GENERAL STAR NATIONAL

declaratory judgment favoring its position, and it also sought a money

judgment compensating it for the portion of the underlying settlement
it paid to the parents.
On cross-motions for summary judgment, the district court granted
Horace Manns motion, declaring that the coverage provided by the
Horace Mann policy was unambiguously excess over the coverage
provided by the General Star policy and that the coverage limits of
the General Star policy had to be exhausted before Horace Mann
became obligated to contribute. Because General Stars coverage limits were not exhausted in this case, the court did not order any contribution from Horace Mann.
I believe that the district court had it exactly right. The order of
coverage provided by these policies is dictated by the unambiguous
"other insurance" clauses contained within each policy, and in this
case those clauses do not conflict; indeed, they accommodate each
other. The "other insurance" clause of the Horace Mann policy
begins:
This is a manuscript contract and is personal to the individual Insured named herein. It was written and priced to
reflect the intent of all parties that this policy is in excess
of any and all other insurance policies, insurance programs,
self-insurance programs, and defense and indemnification
arrangements whether primary, excess, umbrella or contingent and whether collectible or not, to which the Insured is
entitled or should have been entitled, by contract or operation of law, to coverage or to payment including, but not
limited to, payment of defense and/or indemnification.
(Emphasis added). The Horace Mann "other insurance" clause goes
on to provide specifically that it was excess over the policies purchased by educational units in West Virginia to insure against liability
arising from activities of the educational unit or its employees,
regardless of whether that educational insurance provided primary or
excess coverage. As the policy language specifies:
Further, it is the intent of the parties that the coverage
afforded in this policy does not apply if the Insured has

MANN INSURANCE v. GENERAL STAR NATIONAL

25

other valid and collectible insurance of any kind whatsoever

whether primary or excess, or if the Insured is entitled to
defense or indemnification from any other source whatsoever, including by way of example only, such sources as
state statutory entitlements or provisions, except any excess
beyond the amount which would have been payable under
such other policy or policies or insurance program or
defense or indemnification arrangement had this policy not
been in effect. Other valid and collectible insurance
includes, but is not limited to, policies or insurance programs of self-insurance purchased or established by or on
behalf of an educational unit to insure against liability arising from activities of the educational unit or its employees,
regardless of whether or not the policy or program provides
primary, excess, umbrella, or contingent coverage.
***
This policy is specifically excess over coverage provided by
school district or school board . . . general liability policies
purchased by the Insureds employer or former employer
and it is specifically excess over coverage provided by any
School Leaders Errors and Omissions Policy purchased by
the Insureds employer or former employer and it is specifically excess over coverage provided by any policy of insurance which purports to be excess to or recites that it is
excess to a policy issued to the Insured for the benefit of
members of the National Education Association.
(Emphasis added). It is apparent from this language and the statutory
mandate for insurance that the West Virginia Education Association
was purchasing a supplemental policy for its members to provide
backstop coverage beyond that provided by National Union and General Star to the school board and its employees under state statutory
requirements. This is the explicitly stated posture of the Horace Mann
policy to provide coverage in excess of the coverage provided by
"an educational unit to insure against liability arising from activities
of the educational unit or its employees." Moreover, the policy explicitly refers to the state statutory provisions providing for the underlying insurance. Because the General Star policy is incontrovertibly the

26

MANN INSURANCE v. GENERAL STAR NATIONAL

policy issued pursuant to West Virginias mandate to have $5 million

of excess coverage for school boards and school employees, the Horace Mann policy thus provides it is excess over that policy.
In addition to policy language, the structure of insurance coverage
for principals and teachers in West Virginia confirms Horace Manns
posture as the ultimately excess policy. All public school principals
and teachers in West Virginia are covered by the statutorily mandated
insurance for the first $6 million of liability as provided by National
Union for primary coverage and General Star for excess. By indicating that it is excess over insurance provided through "such sources as
state statutory entitlements or provisions" and "purchased or established by or on behalf of an educational unit," the Horace Mann policy clearly was referencing that it was excess over the $6 million of
insurance required by West Virginia law and provided by National
Union and General Star.
The language of General Stars policy does not conflict with Horace Manns order of coverage. To the contrary, it explicitly accommodates Horace Manns policy as a policy excess over its own in its
"other insurance clause." The General Star "other insurance" clause
provides:
If other valid and collectible insurance with any other
insurer is available to the Insured covering a loss also covered by this Policy, other than insurance that is in excess of
the Insurance afforded by this Policy, the insurance afforded
by this Policy shall be in excess of and shall not contribute
with such other insurance.
(Emphasis added). In the "other than" clause, the General Star policy
explicitly recognizes that other insurance can in fact be excess over
it when the other insurance provides that it is excess over the General
Star policy. As I already noted, Horace Mann explicitly made its coverage excess over the General Star policy and therefore General Stars
"other insurance" clause accommodates the order specified in the
Horace Mann policy.
It is thus clear that the insurers involved understood the overall
insurance scheme, with General Star and National Union providing

MANN INSURANCE v. GENERAL STAR NATIONAL

27

the $6 million of coverage mandated by statute and with Horace

Mann providing supplemental coverage over the statutorily mandated
insurance. As the Horace Mann policy stated, it was offered to West
Virginia Education Association members and priced "to reflect the
intent of all parties" that it was intended only to be "in excess of any
and all other insurance policies," to provide members with protection
against a potential loss of assets in the face of an astronomically high
judgment exceeding the other statutorily mandated insurance.
Under West Virginia law, when we decide a case "concerning the
language employed in an insurance policy," we must "look to the precise words employed in the policy of coverage." Horace Mann Ins.
Co. v. Adkins, 599 S.E.2d 720, 724 (W. Va. 2004). Moreover, we
should give the language "its plain, ordinary meaning." Id. (internal
quotation marks and citation omitted). In this case the district court
read the policies and concluded that
[T]he language of both Horace Manns and General Stars
other insurance provisions is unambiguous. Further, in
applying the plain and ordinary meaning of the words used
in those provisions, the Court concludes that, as written, the
coverage provided by Horace Manns policy is unambiguously excess to the coverage provided by the policy issued
by General Star.
I agree.
In addition to refusing to consider the policy language, the majority
also misapplies our decision in Allstate Insurance Co. v. American
Hardware Mutual Insurance Co., 865 F.2d 592 (4th Cir. 1989). In
Allstate we held that the rules generally governing conflicts between
"other insurance" clauses do not apply when one of the policies at
issue is a true excess policy and any other policy is a primary liability
policy. Id. at 595. In the usual case, where two or more "other insurance" clauses are in conflict, the clauses should be ignored and the
policies applied pro rata. See Md. Cas. Co. v. Contl Cas. Co., 189 F.
Supp. 764, 772-74 (N.D. W. Va. 1960). Our decision in Allstate
merely changed this rule in one specific set of circumstances where
there are conflicting "other insurance" clauses and where one policy
is a true excess policy and the other a primary policy. Instead of

28

MANN INSURANCE v. GENERAL STAR NATIONAL

requiring proration, we required, in the automobile context, that the

primary policy be exhausted before the excess policy is applied.
But the Allstate rule applies only to resolve conflicting "other insurance" clauses. When there is no conflict among such clauses, it
remains the governing law in West Virginia that "[l]anguage in an
insurance policy should be given its plain, ordinary meaning." Horace
Mann, 599 S.E.2d at 724 (internal quotation marks omitted). Indeed,
"[w]here provisions in an insurance policy are plain and unambiguous
and where such provisions are not contrary to a statute, regulation, or
public policy, the provisions will be applied and not construed." Id.
Because the reading of the General Star and Horace Mann policies
at issue in this case reveals that they are not in conflict, we should
move no further than declaring that their intent and effect are clear
and, therefore, that application of the rules set forth in Allstate are
inappropriate. I would accordingly affirm.